§ 78B-9-108 — Effect of granting relief -- Notice.

(1) If the court grants the petitioner's request for relief, except requests for relief under Subsection 78B-9-104(1)(h), the court shall either:

(1)(a) modify the original conviction or sentence; or
(1)(b) vacate the original conviction or sentence and order a new trial or sentencing proceeding as appropriate.
(2) If the court grants the petitioner's request for relief under Subsection 78B-9-104(1)(h), the court shall:

(2)(a) vacate the original conviction and sentence; and
(2)(b) order the petitioner's records expunged in accordance with Section 77-40a-402.
(3) (3)(a) If the petitioner is serving a felony sentence, the order shall be stayed for five days. Within the stay period, the respondent shall give written notice to the court and the petitioner that the respondent will pursue a new trial or sentencing proceedings, appeal the order, or take no action.
(3)(b) If the respondent fails to provide notice or gives notice at any time during the stay period that it intends to take no action, the court shall lift the stay and deliver the order to the custodian of the petitioner.
(3)(c) If the respondent gives notice of intent to appeal the court's decision, the stay provided for by Subsection (3)(a) shall remain in effect until the appeal concludes, including any petitions for rehearing or for discretionary review by a higher court. The court may lift the stay if the petitioner can make the showing required for a certificate of probable cause under Section 77-20-302 and Utah Rules of Criminal Procedure, Rule 27.
(3)(d) If the respondent gives notice that it intends to retry or resentence the petitioner, the trial court may order any supplementary orders as to arraignment, trial, sentencing, custody, bail, discharge, or other matters that may be necessary.

Legislative History

Amended by Chapter 120, 2022 General Session; Amended by Chapter 250, 2022 General Session